— by Ben Cranston
If the statistical evidence of success of the NFL’s “Rooney Rule” is any indicator of future increased diversity, we will be seeing significantly more female executives working for NFL franchises in the coming years. The NFL has recently decided to apply the Rooney Rule to open executive-staff positions, requiring teams to interview at least one female candidate for the position. While this new implementation of the rule will likely draw criticism from various sources, challenges to the rule will likely fail in an increasingly open and diverse sports industry.
Brian W. Collins, Note, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, 82 N.Y.U. L. Rev. 870 (2007).
Jane McManus, Rodger Goodell: Women Will Interview for Open Executive Jobs, ESPN (Feb. 4, 2016), http://espn.go.com/espnw/news-commentary/article/14714784/roger-goodell-says-nfl-establish-rooney-rule-women-executive-positions.
On Thursday, February 4, the NFL announced that they will be applying the “Rooney Rule” to female candidates for open executive-staff positions. The NFL’s Rooney Rule was first applied in 2002 to require NFL teams to interview at least one minority candidate for any open coaching position in response to the small percentage of minority head coaches in the NFL. In the wake of the Arizona Cardinals’ hiring of Jen Welter as an assistant coach, making her the first woman to hold a coaching position in the NFL, and the Bills’ hiring of Kathryn Smith as the first full-time female coach, the NFL intends to further the goal of making coaching and executive staffs not only racially diverse, but diverse across gender lines with the new application of the Rooney Rule.
Many authors have explored the nature of the Rooney Rule and why its implementation has been a great success in the NFL, even though it has faced many forms of criticism in its early stages. Brian Collins of NYU, in his article Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, argues that the Rooney rule “travers[es] the line between ‘soft’ and ‘hard’ variants of affirmative action.” He argues that the Rooney Rule is an effective policy to avoid the unconscious bias involved in the hiring practices of the NFL. His article explores the legality of the Rooney Rule and how it may be susceptible to attack on the grounds of reverse racism. The article has particular relevance now, as the Rooney Rule could possibly be attacked again in the wake of its new application to female executive candidates.
In the wake of the Griggs v. Duke Power Company Supreme Court decision, many private employers began implementing affirmative action hiring programs as to avoid liability under Title VII. However, many professional sports leagues implemented “soft” affirmative action techniques, like recruiting and outreach practices, rather than “hard” affirmative action techniques, like quotas and numerical requirements. While leagues like the NBA have been significantly more successful in creating diverse coaching staffs throughout the league by using “soft” techniques, the NFL trailed other professional sports leagues before the implementation of the “hard” Rooney Rule.
While Collins does argue that the Rooney Rule is susceptible to attack under title VII in a reverse discrimination claim by a Caucasian coach who is denied a job, he argues that with some slight changes to the rule, it would be very difficult for that challenger to succeed. The worries about the rule’s applicability and ability to survive a challenge are now even more topical with the application of the Rooney Rule to female candidates. The NFL should be, and is likely, aware of criticism and a possible challenge to the rule now that it has a broader scope. However, the NFL can easily point to the statistics that show a significant increase in minority coaches since 2002 as an indication of the success of the Rooney Rule.
The new application of the Rooney Rule in the NFL will likely draw criticism from many critics of affirmative action practices. However, if the post-Rooney statistical data involving racial diversity in the NFL coaching staffs is any indicator of future gender diversity in executive positions, it will be hard for critics to argue that this rule does not work and does not create more diversity. While the NFL should be prepared for potential attacks on the rule, it is unlikely that such an attack will be successful, nor will an attack find much support in an increasingly open and diverse industry.